What Happens If a Tenant Wants to Stay During a Renovation?
The Need For a Building Permit Generally Determines If Work Is Major Enough to Require a Tenant to Move During Renovations.
When a landlord is undertaking repairs or renovations, such as after learning of, or receiving an Order directions, renovations to meet the Building Code Act, 1992, S.O. 1992, Chapter 23; such can be difficult to permit if rental units are occupied. In this situation, a landlord may prefer that the tenants move out; however, the landlord needs to understand that tenants, generally, hold the statutory right to move back in after the renovation work is completed. Additionally, unless granted permission by the Landlord Tenant Board, a landlord is unable to increase the rent of the returning tenants (but may do so for fresh tenants). To secure the right to reoccupy, when a renovation does require tenants to move out during renovations, tenants must give written notice of an intention to reoccupy after the renovations are done. The tenants are also required to provide notice in writing of a temporary address during the move out period.
How Extensive Is the Renovation?
The intended repair and renovation work must be significant as it must be a sufficient enough renovation as to displace the tenants while the work takes place. On this point, in the matter of [Landlord] v. [Tenant], 2011 CanLII 101419 (ON LTB), the renovations were found as without the significance necessary to require the tenants to vacate the premises whereas the intended renovation was without need of a building permit and thereby deemed insignificant.
In this situation, the landlord was previously ordered by a building inspector to carry out several changes to the house, which was rented, including removing walls, kitchens, and laundry areas. Of the three units, two units were already vacant and much of the repairs to those units were already complete. However, in the third unit, the tenants fought to stay. The matter was brought to the Landlord Tenant Board and the legal issue for adjudication was whether the landlord required vacant possession in order to complete the work; essentially, whether the tenants needed to leave while the renovation work was performed.
The renovation work that remained outstanding, being for the remaining third unit, included sealing an entrance, constructing a balcony, and building a closet. The legal test that the Landlord Tenant Board adjudicator applied is found in the Residential Tenancies Act, 2006, S.O. 2006, Chapter 17 under subsection 50 (1) of the Act, which states:
50 (1) A landlord may give notice of termination of a tenancy if the landlord requires possession of the rental unit in order to,
(a) demolish it;
(b) convert it to use for a purpose other than residential premises; or
(c) do repairs or renovations to it that are so extensive that they require a building permit and vacant possession of the rental unit.
In the [Landlord] v. [Tenant] matter as above, both (a) and (b) were irrelevant. The adjudicator at the Landlord Tenant Board focused on (c) which requires that a building permit be required to do the work at issue and therefore that the work is significant enough that vacant possession is required. It was already known that repairs and renovations were necessary whereas the landlord was ordered to carry such repairs and renovations by the local building inspector; however, what still needed determination was whether vacant possession, meaning displacement of the tenants, was necessary to enable the repairs and renovations.
Within the testimony of the landlord, the landlord cited concerns of noise, dust, and safety hazards for the tenants; however, the landlord failed to adequately persuade the Landlord Tenant Board adjudicator that such were significant concerns whereas the landlord testified that the repairs were relatively minor in nature and the landlord also failed to provide any evidence (eg. a general contractor testifying) to support the viewpoint. Furthermore, the landlord indicated to the Landlord Tenant Board that the landlord wished to increase the rent following the renovations; and accordingly, the Landlord Tenant Board adjudicator remarked that, “This evidence does not establish that vacant possession is necessary for the renovations to be completed as much as it indicates that the Landlords have an ulterior motive for wanting the Tenants to leave.”
Ultimately, the adjudicator determined that the landlord lacked the need of vacant possession because the required renovation work was relatively minor in nature and the tenants were willing to accept the anticipated disturbances.